Jhingur Raut and Others vs Emperor

Dhavle, J.—The petitioners have been found guilty of offences under Sections 143, 145 and 379, I.P.C., and sentenced to fines of Rs. 50 with one month''s rigorous imprisonment in default under each of the first two sections, no separate sentences being considered necessary u/s 379. They were tried along with three lessees of a Government khas mahal called Matkonwha Dasra, but these lessees were acquitted on appeal by the Subdivisional Magistrate of Chapra, who has appellate powers.

The khas mahal is apparently settled every five years, and in connexion with a new settlement a survey was made and a Record of Rights was prepared in January last. The old lessees were Ahirs, and the petitioners are Ahirs. On 9th January a "tanaza" was filed before the khas mahal amin; and when on 17th the khas mahal kanungo went to check the work of the amin, the Ahirs claimed certain lands on the allegation that they had been settled with them by the lessees, while the Rajput tenants, of whom the complainant was one, claimed the land on the allegation that since the reformation of these lands and their becoming culturable, the Rajputs had been cultivating them. The respective claims were urged with a good deal of heat, and the next day the Ahirs were preparing to take forcible possession of the lands whereupon the chaukidar went and informed the thana. The Sub-Inspector came to the diara with two constables and found that 3,000 men had assembled on the scene on behalf of the Ahirs, armed with lathis and other more deadly weapons, while there were some 50 or 60 men assembled on behalf of the Rajputs. The Sub-Inspector commanded the mob to disperse. The Rajputs obeyed in large measure, but the Ahirs defied the order, uprooted the khesari crop, ploughed the land here and there at random, and proclaimed their possession by beat of drum. This was the prosecution story.

The defence was that the prosecution story was false and that the petitioners were in possession. The Magistrate who tried the case, after the close of the prosecution case examined the accused and four defence witnesses on 31st March and apparently heard arguments on 1st April and left for Bhagalpur that day to give evidence there. Then came the Easter holidays, and on the reopening of the Courts, he joined at Siwan where he had been temporarily transferred from Chapra, his previous headquarters. He wrote an order in his order sheet on 1st April which was however cancelled, and on the 7th ha wrote another order saying that both parties had agreed that he should send his judgment over to the Subdivisional Magistrate at Sadr for delivery and that he accordingly did so. The judgment was apparently delivered after that date in open Court by the Subdivisional Magistrate at Sadr, though there is nothing in the order sheet or at the end of the judgment itself to show that that was done.

It has been contended before me on behalf of the petitioners that in these circumstances there was no valid judgment by the trial Court in this case, and Baisnab Charan Das Vs. Amin Ali, , was cited in support. That decision proceeded on the fact that the Criminal Procedure Code makes no provision for the delivery of the judgment written by the Magistrate who hears a case after he has ceased to have jurisdiction in the local area from which the case came. My attention has been drawn to several cases in which the irregular delivery of a judgment was treated as curable u/s 537 of the Code; but it seems to me that these cases are easily distinguishable. Nur Muhammad Khan Vs. Empror for instance, is a decision by Ryves, J., of the Allahabad High Court that where a Magistrate is prevented by physical disability from delivering a judgment himself, he may get this done in open Court by another Magistrate and that such delivery will not make the judgment void, if no prejudice is in fact caused to the accused. But that was not a case where the trying Magistrate had ceased to have jurisdiction in the local area. Chandrika Prasad v. Emperor AIR 1925 Oud 62 is a case from Oudh where the trying Magistrate concluded a trial and signed his judgment and was transferred before he could deliver it in open Court.

It was held that if in these circumstances his successor pronounced the judgment, there was no irregularity, and it was pointed out that the decision in Baisnab Charan Das Vs. Amin Ali, was distinguishable on the ground that in this latter case the judgment was written after the Magistrate had ceased to have jurisdiction. In re Sankara Pillai [1908] 7 Cr. L.J. 459 , which was referred to in AIR 1925 62 (Oudh) was similar to that case in the essential circumstances, and it was pointed out in it that Section 367 of the Code does not require the presiding officer who dates, signs and pronounces the judgment in open Court to be the same as the trying Magistrate who writes the judgment. Reference was made in this last case to High Court Proceedings, dated 28th August 1879, No. 1351 2 Weir 438, but that was a case where a Magistrate had died after passing sentences but before recording his judgment, and it was held that the irregularity was cured by Section 537 of the Code. This last decision has no application to the facts of the present case, and moreover, in Queen-Empress v. Kamthia Girdharia [1899] 1 Bom. L.R. 160, the Bombay High Court set aside a conviction in exactly similar circumstances and ordered a retrial. In Rambit v. Emperor AIR 1923 Rang. 44 it was held in the Lower Burma Chief Court that where a Judge had on account of illness been unable to deliver his judgment himself and had the judgment translated to the accused by the Court interpreter, there was a deliberate breach of the express provisions of Section 367 of the Code, which could not be cured by Section 537, the delivery of judgment and passing of sentence being not a mere formality but an integral part of a criminal trial; a retrial was accordingly ordered. Section 367 of the Code which deals with judgments provides that

every ... judgment shall ... be written by the presiding officer of the Court ... and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it....

It cannot however be held since the decision of the Judicial Committee in AIR 1927 44 (Privy Council) , that the use of the word "shall" in any provision of the Code will, whore such requirement has not been complied with, warrant the quashing of a ... conviction when there is no "probable suggestion of any failure of justice having been thereby occasioned"; as Rankin, C.J., observed in Emperor Vs. Ermanali and Others, the Code is a long list of "shall" and other imperatives, some of which have reference to matters which are in no way vital and many of which are directed to minor incidents of procedure. But this consideration does not help the Crown in the present case. It is true that there is no suggestion of any actual or probable prejudice or failure of justice, but the fact remains that the trying Magistrate prepared his judgment in this case after he had ceased to have jurisdiction in Chapra. His judgment therefore is entirely without jurisdiction, and the defect cannot be cured by invoking the provisions of Section 537 of the Code.

I do not propose to go into the merits of the case beyond observing that there is plainly enough in the record not to let the matter necessarily end with the setting aside of the convictions and sentences passed upon the petitioners.

At the same time, it will save the lower Courts from an error if I went to deal with a point of law that has been discussed before me; and this, the admissibility or otherwise of the Collector''s order dated 7th April 1931 in appeal No. 90 of 1931 to which reference has been made in the appellate judgment of the Subdivisional Magistrate. The date of this judgment explains why the document was not put in before the trying Magistrate; it was filed by the appellants before the Subdivisional Magistrate who was apparently invited on the basis of that judgment to hold that the Rajputs were not in possession of the disputed land but that the Ahirs were. That judgment was passed on an appeal from the order of the khas mahal Deputy Collector. Judgments qua judgments or adjudications upon questions in issue are only admissible in evidence on what may be called the ground of res judicata (Section 40, Evidence Act) or because they are judgments in rem (Section 41) or because they relate to matters of a public nature relevant to the inquiry (Section 42); or, lastly, because their existence is a fact in issue or is relevant under some other provision of the Evidence Act. In the present case it cannot be urged the Collector''s judgment--in this Court an attempt was made to put in the judgment of the Commissioner also--is admissible u/s 40 et seq of the Evidence Act. But it was urged that the judgment of the Collector was admissible u/s 13, Evidence Act, and Muhammad Ehia v. Ganga Dayal Ojha [1917] 40 I.C. 838 was cited in support. That decision is however clearly distinguishable as relating to a title suit with a boundary dispute in which previous judgments which were not inter partes, were held admissible as declaring the same right. Section 13, Evidence Act, may or may not cover previous judgments; there has been much difference of judicial opinion on that point but it certainly will not cover judgments subsequent to the matter under investigation; in both the clauses of the section it is the past tense that is used. It is hardly necessary to add that judgments of the Collector and Commissioner were no more than an interpretation by those authorities of facts gathered or noticed by the khas mahal Deputy Collector or Settlement Officer and that that interpretation has reference to Rule 698 of the Survey and Settlement Manual. We are not concerned in the present case with such an interpretation at all; what the criminal Court has to find is the fact and nature of possession of the disputed lands on 18th January 1931, irrespective of whether or not the Collector and Commissioner, as appellate revenue authorities, subsequently considered, with reference to the rule in the Survey and Settlement Manual, that the Rajputs were to be treated as trespassers.

The petitioners have been able to establish that their conviction by the Deputy Magistrate is vitiated by an illegality not curable u/s 537, Criminal P.C. The conviction and sentences passed upon them must therefore be and are set aside, and for the reason already indicated, it will be open to the District Magistrate to have these men tried again in accordance with law if he should consider it necessary to proceed any further.